Rap is a lyrical expression of social, cultural, and political issues in present society. Unsurprisingly, rap music is the most popular genre of music and features predominantly Black artists highlighting the controversial issues facing their communities. The lyrics are frequently written in the first-person, often filled with profanity, drugs and depictions of gang-related violence.
Across the country, prosecutors are now using metaphorical rap lyrics to prosecute its authors.
The Fulton County District Attorney indicted alleged gang members, including Grammy award winner Young Thug, and quoted their rap lyrics in the indictment. Prosecutors are using those lyrics to connect the artists to the crimes. Prosecutors are also interpreting lyrics as autobiographical confessions, instead of what the lyrics are — fictional language. As a result, the lyrical expression of rappers is now a prosecutorial tool being manipulated to take away their freedom.
The First Amendment protects free speech and expressive conduct, including artistic expression. Rap is a form of artistic expression to share social and political commentary. UGA professor Andrea Dennis, the leading expert on this issue, said, “Rap music lyrics are not simply rhyming poems or declarative sentences, as many individuals believe. Rather, rap lyrics contribute to a complex form of creative verbal expression deserving of careful analysis.” Rap lyrics articulate the social story of low-income Black neighborhoods, exposing the underground realm of crime and violence to the public. The United States Supreme Court said, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.”
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Prosecutors are attempting to introduce rap lyrics to prove motive or intent. Creating art by writing lyrics is not a crime, a wrong, or a bad act. This is a thinly veiled attempt by the state to attack a defendant’s character and show propensity —”the defendant rapped about it so he must have done what he is being charged with now.”
Importantly, it cannot be understated how much race plays a role in how the public views the lyrics and the authors, creating stereotypes that construct racist perceptions of the expressive music. There are multiple studies on how rap lyrics can create stereotypes of Black men as violent, which becomes extremely prejudicial in a criminal jury trial.
In 1999, Psychologist Stuart Fischoff conducted a study in which he gave participants biographical information about a young Black male. Some participants were given sexually explicit rap lyrics allegedly written by the young black male. The study showed that the participants who heard the lyrics were more likely to believe that the young Black male committed the crime.
The prejudicial effect of rap lyrics has negative racial connotations. Psychologist Carrie Fried conducted a study where she used the violent lyrics of folk group Kingston Trio’s song “Bad Man’s Blunder.” The participants were not told who the artist was or what genre the lyrics belonged to. Half of the participants were told that the lyrics were from a country song, and the other half were told the lyrics were from a rap song. The group that was told it was from a rap song believed the artist was dangerous.
There is a clear distinction between the perceptions of rap compared to other genres. The Supreme Court of New Jersey said in a 2014 opinion:
“One would not presume that Bob Marley, who wrote the well-known song ‘I Shot the Sheriff,’ actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story ‘The Tell-Tale Heart,’ simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment.”
In State v. Skinner, the New Jersey high court reversed Vonte Skinner’s conviction of attempted murder because the prosecutors should not have used the rap lyrics as evidence in the trial. The same goes for Queen’s “Bohemian Rhapsody” (“just killed a man, put a gun against his head, pulled my trigger, now he’s dead”) or Johnny Cash’s “Folsom Prison Blues” (“I shot a man in Reno just to watch him die”).
The double standard is undeniable.
The Georgia Attorney General created the Georgia Anti-Gang Network in 2018 and recently was given authority to prosecute criminal gang activity statewide. Interestingly, the Georgia Attorney General — along with other state attorney generals — recently sent a letter to Washington, D.C., using the First Amendment as an offense shield tactic to shut down the Disinformation Governance Board enacted by President Joe Biden, much of which applies to voter fraud and the January 6 insurrection. The letter said the Disinformation Board would infringe upon the First Amendment rights enjoyed by citizens and would silence Americans who wish to express their views. The letter, supported by the Georgia Attorney General, says it is unconstitutional and un-American.
The First Amendment that the Georgia Attorney General used to shield the rights of predominantly white voters is simultaneously being used as a sword to prosecute young Black men.
To [w]rap things up, the prosecution of rap artists is affecting one class of people — young Black men. In cases across the country, prosecutors are using “motive and intent” as a disguise for introducing these lyrics to portray the defendant as a criminal. This bad character evidence is even worse given how juries prejudicially view defendants with explicative rap lyrics.
Earlier this year, the New York Senate introduced a bill (S7527) which would limit the admissibility of rap lyrics. Georgia and other states should follow suit and pass a bill excluding the use of constitutional artistic expression in a criminal trial. Otherwise, prosecutors will continue to use rap lyrics as non-Mirandized confessions.
If the stated goal of every prosecutor is to conduct a fair trial and to seek the truth, then prejudicial rap lyrics should not be allowed in the courtroom during a criminal jury trial. As the gatekeepers to the justice system, winning should not be prosecutors’ priority.
“If you don’t know, now you know.” – The Notorious B.I.G.
Devin Rafus is a senior associate at Atlanta’s Arora Law Firm.
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